Loumar Development Co. v. Redel

• Decision Date: 08 July 1963
• Docket Number: No. 49691,No. 1,49691,1
• Citation: 369 S.W.2d 252
• Parties: LOUMAR DEVELOPMENT CO., Inc., a Corporation, Plaintiff-Respondent, v. Joseph A. REDEL and Emily G. Redel, Defendants-Appellants
• Court: Missouri Supreme Court

Page 252

369 S.W.2d 252

LOUMAR DEVELOPMENT CO., Inc., a Corporation, Plaintiff-Respondent, v. Joseph A. REDEL and Emily G. Redel, Defendants-Appellants.

No. 49691.

Supreme Court of Missouri, Division No. 1.

July 8, 1963.

Leland Jones, Gerhard J. Petzall, Guilfoil, Caruthers, Symington & Montrey, St. Louis, for appellants.

Hanlon & Busch, John F. Hanlon, John A. McCarty, Clayton, for respondent.

HOLMAN, Judge.

In this action plaintiff sought an adjudication to the effect that an easement existed over a 50-foot strip of defendants' land for use as a right of way for a private roadway, and also sought to enjoin defendants from interfering with plaintiff's use thereof. A trial before the court resulted in a judgment for plaintiff and defendants have duly appealed therefrom. We have appellate jurisdiction for the reason that title to real estate is directly involved. Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569.

The adjoining tracts of plaintiff and defendants are part of a 40-acre tract which was conveyed to George S. Johns and Minnie Johns, husband and wife, in 1912. Minnie died on January 5, 1940. Thereafter, Mr. Johns conveyed the tracts here involved and established (or at least attempted to establish) a right of way for a proposed road to run south from Robyn Road through the approximate center of said land. The lands owned by plaintiff and defendants consist of four tracts which will be referred to herein as Tracts, I, II, III, and IV. The alleged easement involved in this case would provide access from Tract IV, which is owned by plaintiff, to Robyn Road. It purportedly was established over the east 25 feet of Tract III and the west 25 feet of Tracts I, II and IV. Tracts I and III front on Robyn Road and Tract II adjoins Tract I on the south, and the north boundary of Tract IV is the south boundary of Tract II.

The conveyances relating to the four tracts heretofore mentioned will be next described. On June 19, 1940, Johns conveyed Tract I to Beatrice M. Worthington. Following the description in the deed is the recital, 'The west 25 feet of above property is subject to the right of way of a proposed road, 50 feet wide.' On the 30th day of November, 1950, Tract I was conveyed to defendants. On October 15, 1940, Johns conveyed Tract III to George F. Heath and wife, and that deed contained the following recital: 'The east 25 feet of above property is subject to the right of way of a proposed road, 50 feet wide.' This tract was conveyed to defendants on November 30, 1954, and that deed contained the same recital in regard to the proposed road as the one contained in the deed from Johns to Heath. On July 19, 1943, the heirs of George Johns conveyed to Jay H. Gruner and wife the land which subsequently became Tracts II and IV (and other land), and that deed contained the following recital: 'Subject to right of way for proposed road 50 feet wide, over part of parcel No. I, according to deed recorded October 28, 1940, in Book 1724, page 525.' (The deed recorded in Book 1724, p. 525, is the one from Johns to Heath and the recital therein is hereinabove quoted.)

The land conveyed to Gruner was subsequently conveyed to one Hynes who, on the 30th day of June, 1953, conveyed the portion thereof which we refer to as Tract II to the defendants. There was no mention in the deed from Hynes to defendants of any easement for a roadway. On the 22nd day of November, 1960, Hynes conveyed certain lands to the plaintiff which included the land which we refer to herein as Tract IV.

One of the defendants, Joseph A. Redel, testified that when he bought Tract I there had been constructed thereon a house, a single-car garage, and a gravel driveway leading from Robyn Road to the garage; that he and his family moved into the house on this property about December 31, 1950; that in 1958, he built a carport on the west side of the garage, and in 1959 paved the driveway with asphalt; that when he bought Tract I, he noticed the proposed road on a survey he received of that tract; that when he bought Tract III, he noticed the wording in the deed regarding a proposed road; that when he purchased Tract II from Hynes, or shortly thereafter, he asked Hynes to join with him and Mrs. Redel in signing a paper which would have abolished the easement for the proposed road in question; that he had an agreement of that kind prepared and submitted the same to Hynes who, although he never refused to sign it, actually did not do so.

Exhibits in evidence disclose that the major part of defendants' driveway from Robyn Road to his garage is located on the west 25 feet of Tract I, which is a portion of the proposed right of way in question, and that a small part of the garage upon that tract (perhaps five feet) and the carport are located on the portion of the easement above mentioned.

Mrs. Dorothy Singer testified that she lived on Robyn Road near defendants' home; that her nephew had owned and occupied Tract I from 1945 to 1950, and that during that period he built the garage which is now located on said tract.

Louis Miller testified that he is president of the plaintiff corporation and that plaintiff purchased Tract IV on November 22, 1960; that two days later he called Mr. Redel and told him that the surveyors would start work in a short time in designating the location of the easement which this suit seeks to establish, and that Mr. Redel said, 'This so-called easement which you are referring to--you would never get because I'll fight you in court for it'; that when the surveyors did attempt to stake out the easement Mr. Redel Refused to let them come on his land. This suit was filed shortly thereafter. Mr. Miller testified further that there is another roadway which can be used to reach a part of plaintiff's land but it cannot be used to reach a portion of Tract IV because of a drainage draw with steep grades which it would have to cross.

Respondent has filed a motion to dismiss the appeal because of the failure of defendants' brief to comply with S.C.Rule 83.05, V.A.M.R. The most serious violation of the rule is the failure of the brief to 'briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed.' In an effort to avoid a dismissal, defendants have asked leave to amend their 'Points Relied On' in a manner which would cause them to comply with Rule 83.05(e). We hereby authorize said amendment. The brief is subject to criticism in other respects, but we do not think the violations are serious enough to justify a dismissal of the appeal. The motion is accordingly overruled.

In a case of this nature we must determine the cause de novo, weigh the competent evidence, and reach our own conclusions based upon that evidence. Jackson v. Tibbling, Mo.Sup., 310 S.W.2d 909.

The first contention of defendants is that no easement was in existence at the time this suit was filed because the deeds above described purported to create an easement for a proposed road--a particular road which was never constructed. In their brief defendants say that 'Johns had a particular proposed road in mind, which road was prerequisite to the ripening of the easement and which, of course, never came into being. The right of way or easement was not to accommodate just any road; it was to accommodate one specific road. A road that had already been planned by the grantor. If the planned road was established, the right of way was available for it. The right of way was not otherwise to exist. * * * Thus, because the condition precedent, i. e., the particular proposed roadway which Johns had in mind and for which the easement was created, never came into being, the easement itself never came into being--it was void ab initio.' We do not agree with that contention. Johns' intent must be ascertained from the various deeds by which he attempted to create the easement. There is nothing in those deeds to indicate that he had a particular road in mind. One definition of 'proposed' is 'intended.' We think a reasonable construction of these deeds is that Johns intended to provide a right of way for a road which had...